Akhtarani (Migration) [2022] AATA 4035 (15 November 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:
Mr Hamid Akhtarani
Ms Zeynab Sharifnia
Mr Saman Akhtarani
Ms Yasamin Akhtarani
REPRESENTATIVE: Dr Bhavisha Mehta (MARN: 1681165)
CASE NUMBER: 1935120
HOME AFFAIRS REFERENCE(S): BCC2017/3786900 BCC2017/3916144 BCC2017/3916158 BCC2019/4677137
MEMBER:Mary Sheargold
DATE:15 November 2022
PLACE OF DECISION: Melbourne
DECISION:The Tribunal remits the applications for Business Skills (Residence) (Class DF) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 892 (State/Territory Sponsored Business Owner) visa:
·cl 892.211(1) of Schedule 2 to the Regulations.
Statement made on 15 November 2022 at 10:48am
CATCHWORDS MIGRATION – Business Skills (Residence) (Class DF) visa – Subclass 892 (State/Territory Sponsored Business Owner) – qualifying business – evidence provided showed business has transaction history with one customer – misunderstanding of requirements – transaction history provided was with best customer, not only one – genuine commitment to establishing and maintaining business – decision under review remitted
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 4 December 2019 to refuse to grant the visa applicants Business Skills (Residence) (Class DF) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants applied for the visas on 13 October 2017. At the time of application, Class DF contained four subclasses: Subclass 890 (Business Owner), Subclass 891 (Investor), Subclass 892 (State/Territory Business Owner) and Subclass 893 (State/Territory Sponsored Investor). The applicants in this case are seeking to satisfy the criteria for the grant of Subclass 892 (State/Territory Business Owner) visas, as set out in Part 892 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). At least one member of the family unit must satisfy the primary criteria set out in Subdivision 892.2. The others need only to satisfy the secondary criteria set out in Subdivision 892.3.
The delegate in this case refused to grant the visas on the basis that the first named visa applicant did not satisfy the requirements of cl 892.211(1) of Schedule 2 to the Regulations because the main business nominated by the first named applicant in support of this application provided evidence of a transaction history with only one customer, and so did not, in the delegate’s view, meet the definition of ‘qualifying business’ as defined in r.1.03 of the Regulations, meaning he did not have an ownership interest in 1 or more actively operating main businesses in Australia for at least 2 years immediately before the application was made.
The applicants, including the third and fourth named minors, appeared before the Tribunal on 27 October 2022 to give evidence and present arguments.
The…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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This matter concerned an application for a Business Skills (Residence) (Class DF) visa, specifically Subclass 892 (State/Territory Sponsored Business Owner), made by the first named applicant. The dispute centred on whether the applicant met the requirements of clause 892.211(1) of the Migration Regulations 1994, which pertains to having an ownership interest in an actively operating main business in Australia for a specified period. The decision was made by a Tribunal member, Mary Sheargold.
The primary legal issue before the Tribunal was to determine if the first named applicant satisfied clause 892.211(1) of the Migration Regulations 1994. This clause requires an applicant to have had an ownership interest in one or more actively operating main businesses in Australia for at least two years prior to the visa application, and to continue to hold that interest at the time of the application and at the time of the decision. The Tribunal also considered the definition of "ownership interest" and "main business" as stipulated in the Regulations.
The Tribunal found that the first named applicant had provided sufficient evidence to satisfy clause 892.211(1). The applicant demonstrated an ownership interest in Arshida Pty Ltd, a company he registered and of which he is the sole director and shareholder. The Tribunal was satisfied that this business was actively operating and met the definition of a "main business" for the relevant periods. Consequently, the Tribunal remitted the matter to the Minister for reconsideration of the remaining visa criteria, including those for the secondary applicants, with a specific direction that the first named applicant met the criterion under clause 892.211(1).
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
For the following reasons, the Tribunal has decided that the matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in this case is whether the first named applicant meets the requirement of cl.892.211(1).Ownership interest in main business Clause 892.211(1) requires that the applicant had an ownership interest in one or more actively operating main businesses in Australia for at least two years immediately before the visa application was made and continued to have that interest at the time the visa application was made. The applicant must continue to satisfy this requirement at the time of this decision: cl 892.221(a). No more than two businesses can be nominated for this purpose (reg 1.11(2)) and only one or both of the businesses relied on to meet the time of application criterion can be relied on to meet the time of decision criterion: Yang v Minister for Immigration and Border Protection [2014] FCCA 1576. The business relied on by the applicant to satisfy these requirements is operated by Arshida Pty Ltd, a company registered by the first named applicant on 22 July 2015. Accordingly, the Tribunal must consider the nature of the applicant’s interest in this business, whether the business was actively operating and whether it met the definition of ‘main business’ in the period commencing two years immediately prior to the date of application and as at the date of application. The Tribunal must also consider these issues as at the date of this decision and whether the applicant continues to satisfy cl 892.211(1). Does the applicant have an ownership interest in each business relied on at all relevant times? An ‘ownership interest’, in relation to a business, means an interest in the business as:·a shareholder in a company that carries on the business, or·a partner in a partnership that carries on the business, or·the sole proprietor of the business;including such an interest held indirectly through one or more interposed companies, partnerships or trusts (reg 1.03 of the Regulations and s 134(10) of the Act). Ownership for this purpossssssssqwase includes beneficial ownership if it is evidenced in accordance with the terms of reg 1.11A of the Regulations, set out in the attachment to this decision: reg 1.11A(1). In order to meet cl 892.211(1) the Tribunal must be satisfied that the applicant had an interest of this kind in the relevant business or businesses both at the time of making that application and for the two years immediately before. In order to meet cl 892.221(a) the Tribunal must be satisfied that the applicant continues to satisfy this requirement at the time of this decision. At the hearing, the first named applicant gave evidence confirming that Arshida Pty Ltd is his only Australian business and that he is the sole director and shareholder in the company. This is confirmed by records provided from the Australian Securities and Investments Commission. The first named applicant told the Tribunal that his family businesses in Iran have been involved in the silver jewellery trade, but on arriving in Australia after his brother, he found an opportunity to expand into the eyewear market via some associates of his brother. Arshida has traded in all manner of accessories, including eyewear, sterling silver jewellery and costume jewellery, since it was incorporated. The first named applicant stated that while the business is primarily focused on retail jewellery sales now, it has historically been involved in wholesaling and retailing of eyewear.
Decision
Reasons for decision
Given the findings above, the Tribunal is satisfied that cl 892.211(1) is met. The appropriate course is to remit the matter to the Minister to consider the remaining criteria for the visa, including in respect of the secondary applicants. While the Tribunal is not obliged to expand its review beyond the criterion in dispute, the Tribunal notes that after detailed discussions with the applicants and their representative during the hearing, it is clear that the first named applicant continues to satisfy the requirements of cl.892.211 at the time of this decision.decision The Tribunal remits the applications for Business Skills (Residence) (Class DF) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 892 visa:·cl 892.211(1) of Schedule 2 to the Regulations.Mary SheargoldMemberATTACHMENT - LEGISLATIONMigration Regulations 19941.03DefinitionsIn these Regulations, unless the contrary intention appears:…ownership interest has the meaning given to it in subsection 134(10) of the Act.…qualifying business means an enterprise that:(a) is operated for the purpose of making profit through the provision of goods, services or goods and services (other than the provision of rental property) to the public; and(b) is not operated primarily or substantially for the purpose of speculative or passive investment.…1.11Main business(1)For the purposes of these Regulations and subject to subregulation (2), a business is a main business in relation to an applicant for a visa if:(a)the applicant has, or has had, an ownership interest in the business; and(b)the applicant maintains, or has maintained, direct and continuous involvement in management of the business from day to day and in making decisions affecting the overall direction and performance of the business; and(c)the value of the applicant’s ownership interest, or the total value of the ownership interests of the applicant and the applicant’s spouse or de facto partner, in the business is or was:(i)if the business is operated by a publicly listed company—at least 10% of the total value of the business; or(ii)if:(A)the business is not operated by a publicly listed company; and(B)the annual turnover of the business is at least AUD400 000;at least 30% of the total value of the business; or(iii)if:(A)the business is not operated by a publicly listed company; and(B)the annual turnover of the business is less than AUD400 000;at least 51% of the total value of the business; and(d)the business is a qualifying business.(2)If an applicant has, or has had, an ownership interest in more than 1 qualifying business that would, except for this subregulation, be a main business in relation to the applicant, the applicant must not nominate more than 2 of those qualifying businesses as main businesses.1.11A Ownership for the purposes of certain Parts of Schedule 2(1)Subject to subregulation (4), for Parts 132, 188, 888, 890, 891, 892 and 893 of Schedule 2, ownership by an applicant, or the applicant’s spouse or de facto partner, of an asset, an eligible investment or an ownership interest, includes beneficial ownership only if the beneficial ownership is evidenced in accordance with subregulation (2).(2)To evidence beneficial ownership of an asset, eligible investment or ownership interest, the applicant must show to the Minister:(a)a trust instrument; or(b)a contract; or(c)any other document capable of being used to enforce the rights of the applicant, or the applicant’s spouse or de facto partner, as the case requires, in relation to the asset, eligible investment or ownership interest;stamped or registered by an appropriate authority under the law of the jurisdiction where the asset, eligible investment or ownership interest is located.(3)A document shown under subregulation (2) does not evidence beneficial ownership, for subregulation (1), for any period earlier than the date of registration or stamping by the appropriate authority.(4)Beneficial ownership is not required to be evidenced in accordance with subregulation (2) if the person who has legal ownership of the asset, eligible investment or ownership interest in relation to which the applicant, or the applicant’s spouse or de facto partner, has beneficial ownership:(a)is a dependent child of the applicant; and(b)made a combined application with the applicant; and(c)has not reached the age at which, in the jurisdiction where the asset, eligible investment or ownership interest is located, he or she can claim the benefits of ownership of the asset, eligible investment or ownership interest.Migration Act 1958134Cancellation of business visas….(10)In this section:….ownership interest, in relation to a business, means an interest in the business as:(a) a shareholder in a company that carries on the business; or(b) a partner in a partnership that carries on the business; or(c) the sole proprietor of the business;including such an interest held indirectly through one or more interposed companies, partnerships or trusts.
